Judge McFadden chides DOJ over Comey case charging method
The federal judge warned against a predawn raid after prosecutors filed the third criminal case against the former FBI director without a grand jury indictment.
By Olivia Miller ·
U.S. District Judge Trevor McFadden expressed strong reservations about how the Justice Department is handling its latest prosecution of former FBI Director James Comey. On Friday, McFadden told prosecutors that he would be "extremely frustrated" if agents executed a predawn raid on Comey’s home while wearing black pajamas, a detail often associated with high-profile arrests.
The comment came during a hearing regarding the third criminal case filed against Comey since September 2025. The current case was brought under seal on October 5, exactly ten years after a New York Times article reported on Yahoo’s compliance with a secret Foreign Intelligence Surveillance Court order. Prosecutors allege that in October 2016, Comey authorized his staff to contact a reporter to correct the record on that story.
Federal prosecutor Dustin Farahnak attempted to reassure the court of their intentions. "We’re not going to do anything that will offend the court," Farahnak said. However, Comey’s attorney, Ephraim McDowell, noted that FBI agents were already stationed outside his client’s home. McDowell argued that the government failed to secure a valid indictment from a grand jury before the ten-year statute of limitations expired.
The government did not use a standard criminal complaint evaluated by a judge nor a grand jury indictment. Instead, they filed a criminal information directly, a mechanism that lacks immediate judicial sign-off. Comey’s legal team suspected the strategy aimed to secure an arrest warrant for an after-hours execution on the Friday before Columbus Day, potentially keeping Comey in jail over the long holiday weekend.
McFadden did not ban the government from returning to a federal grand jury, describing that choice as theirs. He referenced recent failures in Washington, D.C., where grand jurors have shown skepticism toward politically charged cases. Earlier in the week, the Trump administration failed to secure an indictment for Cassidy Hutchinson, a key witness for the Jan. 6 committee. In a similar vein, prosecutors failed to indict six sitting members of Congress earlier this year over a social media video.
The judge joked about the current state of grand juries, remarking that "Ham sandwiches are harder to indict these days." He suggested that if the grand jury refused to indict Comey again, the current proceedings would be an exercise in futility. McDowell warned that if the case is rejected, the government could simply return to seek another indictment while Comey waits.
This is the third case against Comey in a series that began in the Eastern District of Virginia. That initial indictment was tossed after it emerged that the attorney, Lindsey Halligan, was acting as a federal prosecutor without proper authorization. The second case, dubbed the seashells case, originated in North Carolina. Prosecutors argued an Instagram photo of seashells spelling "8647" was a threat. A judge has postponed that trial until 2027.
Legal experts have criticized the charging mechanism used in the current case. Former federal prosecutor Sarah Krissoff stated that the department's approach undermines their own complaint. She suggested that if the case was strong enough, they should have used a standard complaint with a judge’s signature or presented it to a grand jury. Krissoff called the handling of the situation "disturbing," implying that the case may go nowhere.
Farahnak is a special U.S. attorney working under acting Deputy Attorney General Trent McCotter and Associate Deputy Attorney General Aakash Singh. The U.S. Attorney’s Office for the District of Columbia, led by Jeanine Pirro, is not directly involved in this prosecution. McFadden ordered the case unsealed on Monday and set a hearing for Friday to consider Comey’s motion to dismiss.
